Network Ten Pty Ltd v TCN Channel Nine Pty Ltd

[2003] HCATrans 660

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S213 of 2002

B e t w e e n -

NETWORK TEN PTY LIMITED

Applicant

and

TCN CHANNEL NINE PTY LIMITED

First Respondent

QUEENSLAND TELEVISION LIMITED

Second Respondent

GENERAL TELEVISION CORPORATION PTY LIMITED

Third Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 2003, AT 11.11 AM

Copyright in the High Court of Australia

__________________

MR J.M. IRELAND, QC:   If the Court pleases, I appear with my learned friends, MR R. COBDEN and MR C. DIMITRIADIS, on behalf of the applicants.  (instructed by Blake Dawson Waldron)

MR A.J.L. BANNON, SC:   I appear with MR D.T. KELL on behalf of the respondent.  (instructed by Gilbert & Tobin)

GUMMOW J:   I think we would be interested in hearing first from you, Mr Bannon.

MR BANNON:   If it please the Court.  Your Honours, that section 14 of the 1956 UK Copyright Act was the model for our broadcast copyright provision is not a proposition which is open to doubt.  The Spicer Report in paragraph 188 stated that the provision should be made for the protection of broadcasts against the kind of pirating envisaged by section 14 of the UK Act.  We adopted exactly the same definition of television broadcast in our definition.  The critical provision to look at is section 14(6) of the UK Act.  That appears in the application book at page 168 where, after setting out – this is in Justice Hely’s judgment – the four categories of restricted act which more or less match ours, subsection (6) provides:

in so far as they consist of visual images, the restrictions imposed . . . shall apply to any sequence of images sufficient to be seen as a moving picture; and accordingly, for the purpose of establishing an infringement of such copyright, it shall not be necessary to prove that the act in question extended to more than such a sequence of images.

It cannot be clearer that under the UK Act, which is the parent of our legislation, any sequence of images was protected in relation to every category of infringement.  Justice Hely said as much in paragraph 38 which follows.

GUMMOW J:   You say there is no serious question about any of this?

MR BANNON:   Absolutely.  Then one comes to see 295, which is the critical paragraph, which is a paragraph which attracts a lot of focus.  It is 169 of the application book.  The attraction of focus on photographs detracts from this fundamental proposition which appears from 288, namely the starting point was to provide the kind of protection of 14, the kind of protection of 14 is “any sequence of images”.  Section 295 is simply dealing with one aspect of that, which is the photograph.  Hence, at 177, in paragraph 72 of his judgment, Justice Hely states with admirable succinctness:

Paragraph 295 of the Spicer Report makes it clear that s 25(4) was intended to provide a greater protection to broadcasters than that contained in s 14(6).  That objective would be frustrated, rather than furthered, by the adoption of the construction of s 25(4) for which Ten contends.

Ten contends that against that background the words of 14(6) and Spicer that you interpret “visual images” which appear in our definition to mean a form of protection narrower than what the 1956 Act unarguably provided ‑ ‑ ‑

GUMMOW J:   Should we not get down to the nitty‑gritty of the Australian Act and construe section 87?

MR BANNON:   Yes, but there are no words in the definition of “television broadcast” which refer to program.  They simply refer to visual images.

GUMMOW J:   You attract the language of 87(a) “in the case of a television broadcast”, so that is defined in section 10 as meaning visual images plus sound, right?

MR BANNON:   Yes.

GUMMOW J:   Then 87(a) is telling you what the exclusive right is in the case of a television broadcast but then it chops it up:

in so far as it consists of visual images – to make a cinematograph film of the broadcast ‑ ‑ ‑

MR BANNON:   Yes.

GUMMOW J:   You look at the definition of “cinematograph film” and that has images plus sound as well.  So you would have a nonsense.

MR BANNON:   But you have a deeming provision which accommodates that in 25(4)(a).

GUMMOW J:   Well, that is the question.

MR BANNON:   But it says, we submit, in the clearest of terms a “film of . . . any of the visual images” which includes a photograph.

GUMMOW J:   Then we have here an infringement action, I guess.  It is under 101, is it?

MR BANNON:   Yes.

GUMMOW J:   Yes.  So this is a subject matter other than a work?

MR BANNON:   That is so.

GUMMOW J:  Yes:

does . . . the doing . . . of, any act comprised in the copyright.

MR BANNON:   Yes.

GUMMOW J:   And, on the face of it, 87 is talking about all of it, but then section 14 tells you “a substantial part” will be enough, even in relation to a subject matter other than a work.  How do you fit all that together?  That is the question, is it not?  And the answer is not spellbindingly clear.

MR BANNON:   We say there is a common and simple answer to the question of “substantial part” which one sees every day on television.  An example is the footage of the plane going into the building in the Twin Towers.  What we saw on TV was a cropped image of that.  It was not the whole image which was – I think it might have been a video footage in that case, but if it had been a television broadcast, what you see is a cropped image of that which is blown up and focused.  That is “a substantial part” of a single image if that was a broadcast.

One sees croppings on a daily basis of images.  There is a simple way of applying “substantial part” to images.  The Spelling Case is an example of that, albeit in a slightly different context.  But one comes back to the fundamental problem, if you plug in the words “of visual images broadcast”, which is what Justice Hely did, into the intrinsic provisions and into section 87, you get a simple answer.  It is completely consistent with 14(6).  It is completely consistent with Spicer.

GUMMOW J:   With 14(6)?

MR BANNON:   Of the UK Act, sorry.

GUMMOW J:   I am not worried about the UK Act particularly.

MR BANNON:   But in the absence of words we would say program.  One is left with just the words of the definition “visual images”.  We say there are no words there which confine one to the way in which TV moguls may decide to organise their affairs.  Our approach does not require any addition of words and, yes, we construe our legislation, but if one goes in search for a reason to add words, the source of any such reasons is Spicer and the UK Act and is not there; in fact, there is a contrary indication.

GUMMOW J:   But it produces a result, does it not, that I think Mr Ireland complains of that this, of all subject matter other than works, has this particular drastic characteristic as to infringement.  What is the wisdom of that?

MR BANNON:   One can ask what is the wisdom of writing broadcasting copyright at all because it simply seems to be based on the fact that you have a lot of money and you have an ability to send signals plus a licence.  It is a bit like the argument in the Lego Case that the Privy Council thought was attractive and the Full Federal Court thought was not viable, namely you have a perpetual copyright every time you add a little bit to a drawing of a Lego brick.

Here there is always an underlying work to which someone is concerned to copy, if they want to, to which they could refer, if it is an underlying film or an underlying book or a play.  What limited protection is provided here is in relation to the actual images broadcast.  If they can get those images from any other source, they can use them.

GUMMOW J:   Every which?

MR BANNON:   Anything which constitutes an image which is broadcast and recognising that when the thing – broadcast copyright was started was – and indeed is still done today – that the primary rebroadcast would be done by pulling down the signal and sending it on.  Recognising those unique features of broadcasting, how one might ever know when one started to infringe or not infringe would be a completely unworkable provision.  This one is workable.  The fair dealing defences are ample.  There has never been a suggestion that is any controversy in text writers before.  There is no contrary decision anywhere around the world.  There is no ‑ ‑ ‑

GUMMOW J:   That is a false argument though really, is it not, saying, “Don’t you worry about that because fair dealing will look after it”?  It is turning it back to front.

MR BANNON:   If it is put against - the reason for special leave is that the dramatic concern or impact it may have, it is an answer we would say but it does not answer the question about interpretation.

GUMMOW J:   It does not answer the question about construction.

MR BANNON:   What we point out in our submissions and as appears from the Full Court judgment, we say, your Honour, is that our approach fits with the legislation, is completely workable and does not cause any apparent injustice.

GUMMOW J:   How long will this case take, gentlemen, if leave were granted?  It would be one day, would it not?

MR IRELAND:   Yes, your Honour.

GUMMOW J:   We do not need to hear from you, Mr Ireland.  There will be a grant of special leave in this matter.

AT 11.23 AM THE MATTER WAS CONCLUDED